Patents kill open innovation

According to many in open innovation communities, patents are not only unnecessary to trigger inventive activity, they are the avowed enemy.64 In the free and open source software world, for instance, many free and open source software luminaries argue vociferously against software being patentable at all.65 The “computational ideas” for which patents are often sought and obtained are the basic building blocks of software programs;66 they are mathematical formulas, in essence “laws of nature,” that should fall outside of patentable subject matter.67 Taking them out of the public do- main through a patent grant prevents others, including specifically those in open innovation communities, from using these basic concepts to create ad- ditional technology. Consequently, future developers, users, and society in general suffer.68

Other patent-related risks to open innovation communities may arise based on how the patent system is administered. For instance, those in open innovation communities have long voiced concerns over the breadth and indeterminate scope of issued patents, especially in the software and infor- mation technology industries.69 Richard Stallman, the founder of the free software movement, argues that in many contexts it is impossible to deter- mine what software any given patent covers; nor is it feasible to read all rel- evant patents, even if they were understandable.70 Consequently, avoiding the patent by simply designing around it becomes nearly impossible.71 Other options, such as licensing the patent or seeking to overturn it in court, also come with significant challenges such as an unwilling licensor and, in many cases, resource constraints on the part of the developer.72 As a result, for some developers opting out of inventive activity may be the only ration- al route.